BLEVINS & BLEVINS - [2019] FCCA 1923

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLEVINS & BLEVINS

[2019] FCCA 1923

Catchwords:
FAMILY LAW – Spouse Maintenance – whether or not leave is required pursuant to s.44(3) of the Family Law Act 1975 (Cth) to institute spousal maintenance proceedings – leave not required.

Legislation:

Family Law Act 1975 (Cth), ss.44, 80, 81, 83

Cases cited:

Atkins & Hunt [2016] FamCAFC 230

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Caska v Caska [2001] FamCA 1279

Emerald & Emerald [2017] FamCA 798

Lambton & Lambton (No.2) [2017] FamCAFC 230

Sharp & Sharp [2011] FamCAFC 150

Applicant:

MS BLEVINS

Respondent:

MR BLEVINS

File Number:

HBC 69 of 2009

Judgment of:

Judge Baker

Hearing date:

1 July 2019

Date of Last Submission:

1 July 2019

Delivered at:

Melbourne

Delivered on:

11 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Foster

Solicitors for the Applicant:

Murdoch Clarke

Counsel for the Respondent:

Mr Lewinski

Solicitors for the Respondent:

Butler Mcintyre & Butler

ORDERS

The Application in a Case filed 15 May 2019 be dismissed.
The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on 6 August 2019 at 2:00pm.
That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the Court, at least 7 days before the conciliation conference, copies of:
(a)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(b)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(c)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.3) (a) to (c), the Registrar is directed to contact the chambers of Judge Baker in order to urgently list the matter before Judge Baker for further directions and submissions with respect to costs.
The matter be adjourned to a date to be fixed after the Conciliation Conference for final hearing (“the hearing date”).
Unless the Court otherwise grants leave the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.
The Applicant and Respondent be granted leave to file an affidavit in respect of any matters arising since the filing of their trial affidavit.
The Applicant make, file and serve an updated Financial Statement any affidavit material upon which she intends to rely no later than 21 days prior to the hearing date.
The Respondent make, file and serve an updated Financial Statement any affidavit material upon which he intends to rely no later than 14 days prior to the hearing date.
Each party make, file and serve no later than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BLEVINS & BLEVINS

Details

AGLC: BLEVINS & BLEVINS [2019] FCCA 1923
Case: [2019] FCCA 1923
Decision Date: 11 July 2019

CaseChat Overview and Summary

In BLEVINS & BLEVINS, the applicant sought leave to institute spousal maintenance proceedings. The court was required to determine whether such leave was necessary pursuant to section 44(3) of the *Family Law Act 1975* (Cth).

The court reasoned that section 44(3) of the *Family Law Act 1975* (Cth) does not require leave to institute spousal maintenance proceedings. The court's determination was based on its interpretation of the relevant legislative provisions.

The application for leave was dismissed, and the parties were directed to attend a Conciliation Conference. Further orders were made regarding the exchange of documents, the filing of affidavits and case outlines, and the payment of court fees. The costs of the applicant were reserved.

Orders

Orders of the court

The Application in a Case filed 15 May 2019 be dismissed.

The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on 6 August 2019 at 2:00pm.

That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the Court, at least 7 days before the conciliation conference, copies of:

(a) a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

(b) a copy of the actual terms of orders required to give effect to their settlement proposal; and

(i) all relevant documents have been exchanged between the parties; and

(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.3) (a) to (c), the Registrar is directed to contact the chambers of Judge Baker in order to urgently list the matter before Judge Baker for further directions and submissions with respect to costs.

The matter be adjourned to a date to be fixed after the Conciliation Conference for final hearing (“the hearing date”).

Unless the Court otherwise grants leave the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.

The Applicant and Respondent be granted leave to file an affidavit in respect of any matters arising since the filing of their trial affidavit.

The Applicant make, file and serve an updated Financial Statement any affidavit material upon which she intends to rely no later than 21 days prior to the hearing date.

The Respondent make, file and serve an updated Financial Statement any affidavit material upon which he intends to rely no later than 14 days prior to the hearing date.

10.

Each party make, file and serve no later than 3 days prior to the hearing date a case outline setting out:

PROPERTY

a. A list of the material relied upon.

b. A brief chronology, listing significant events;

c. A table, listing all of the assets, liabilities and financial resources claimed to be part of the pool of assets, with the values contended for by each party;

d. Main contentions on disputes as to:

i. Inclusions in the pool of assets;

ii. Values of assets;

e. A list of contributions claimed or contended for;

f. A list of other factors relied upon (s.75(2) factors) and percentage adjustment contended for;

g. Other relevant contentions to determining a “just and equitable” division of property; and

h. The actual orders sought.

11.

In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”), the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

12.

The costs of the Applicant be reserved.

THE COURT NOTES THAT:

A. The parties are expected to comply with the trial directions made today regardless of whether they have secured legal aid funding.

B. In the event that any party does not comply with the orders, directions, Rules or Regulations of this Court relating to the filing of documents the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules or Regulations.

C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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